Wednesday, May 29, 2013

New Illinois State Bar Association opinion on fees in estate matters

The ISBA has issued its first ethics opinion of the calendar year. It was approved in January and designated number 13-01. the summary reads as follows: "It is not ethically permissible for a lawyer for a representative of a decedent’s estate to enter into a fee agreement, or to collect a fee, for an amount in excess of the amount of fees allowed by a probate court as reasonable."
Not everyone agrees with that conclusion, though. In the May ISBA Trusts and Estates newsletter, Thomas Bransfield and Darrell Dies argue that the the Opinion "condemns attorneys from seeking payment of any 'disallowed portion' of a fee petition, even if the fee is reasonable and the client is willing to pay," which they say "conflicts with the Probate Act that entitles attorneys to be paid reasonable compensation for services." Here's their analysis. You can read the opinion here. If you are a member of the ISBA, you can see the Trusts and Estates newsletter here.

Is it a violation of the rules to say one specializes in a certain area of the law?

Back in 2011, I wrote about a case from Indiana in which two attorneys were disciplined for stating in an ad in the yellow pages that they "specialized" in bankruptcy practice. The disciplinary authority reasoned that this was the equivalent of saying that the attorneys had been certified as specialists in a given field of law, something with which I do not agree.

Now, a recent case from Louisiana repeats the mistake, and worse.

But first, some background. As you probably know, states can, without violating the attorney's first amendment rights, discipline attorneys who engage in advertising that is misleading. Claiming that an advertisement is misleading is, in fact, the easiest way for the state to impose discipline in advertising cases. But what exactly constitutes a misleading ad? That is not such an easy question to answer.

Should an ad in which the lawyer says "I get results!" while pounding on a table be considered misleading because it suggests the lawyer always wins? I don't think so. I think we can use some common sense here and trust that consumers will not understand that to be the meaning of the message of the ad.

Likewise, I don't think that an ad that says an attorney specializes in a certain area of the law is a problem. After all, "to specialize" is simply a phrase that means "to concentrate one's efforts in a special activity, field, or practice."

If an attorney's main area of practice is bankruptcy law then he or she, in fact, specializes in bankruptcy law. Can't a lawyer advertise that they specialize in a particular area of the law anymore? How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on.

In the new case from Louisiana, a Hearing Committee has recommended a reprimand for an attorney based on the fact that his web page stated that he specializes in maritime personal injury and death cases.

Again, I don't see how that can be a problem. But wait! There's more! In this case, the lawyer had in fact received a certificate of maritime specialization from his law school. In other words, he did have a special certificate in the area of law.

Yet, the committee rejected the attorney's First Amendment defense without discussion.

I think this case should be reviewed by the courts and reversed simply because I don't think it is a violation of the rules to say that one specializes in a certain type of practice (as long as it is true that one does, of course).

On the duty supervise non lawyers

"Your ABA" has posted a short article discussing the duty to supervise non lawyers in the office here.
For a recent example of a case of discipline for failure to supervise, go here.

Monday, May 20, 2013

NJ considering imposing pro bono requirement for admission (as in New York)

A working group appointed by the NJ Supreme Court has released a report and recommendations in which it urges the adoption of a 50 hour law-related pro bono service requirement as a condition of admission to the NJ Bar.  The proposed rule is modeled after, but not identical, to the recently adopted rule in New York.   For more information and description of the proposed rule go here and here.

It is interesting to note that, surprisingly, there was a good deal of negative reaction to the adoption of the rule in New York, particularly from proponents of pro-bono programs.  I believe these proposals do have good intentions, but I am not sure that they are needed nor that they are a good idea.  I am willing to be convinced but most of the arguments I have seen have been negative and pretty convincing.  For more go here, here and here.

Brady v. Maryland turns 50 while many articles lament comment on how it has failed to fulfill its promise

About ten days ago Brady v Maryland turned 50 years old.  That landmark decision, one of those so important most lawyers will recognize it by name, recognized that prosecutors have a duty to disclose exculpatory evidence to criminal defendants.  This duty was later expanded as part of Model Rule of Professional Conduct 3.8.

Unfortunately, it is well known that failure to abide by the duty is a common argument in support of post-conviction relief claims.  In some instances (as in the cases of Smith v. Cain and Connick v. Thompson) it has been claimed that prosecutors' offices routinely violate the duty.

A number of articles during the past few days have discussed the issue.  Here are a few links:

The New York Times laments in an editorial that "there is good reason to believe that violations [of the Brady rule] are widespread" and that "[the rule] has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases."  You can read the full article here.

Seeking Justice comments on the NYT editorial here.

Seeking Justice also wished Brady a Happy Birthday here.

The Atlantic published an article on Brady here.

Prof. Bruce Green has published an article proposing a possible new approach to the duty under Brady that would address the fact that discovery is far narrower in federal criminal cases than in federal civil litigation.  You can access the article here.  (thanks to The Legal Ethics Forum for this link.)

Finally, for a comment on Bruce Green's article go to Otherwise.

Thursday, May 16, 2013

For the professors going to the ABA National Conference in San Antonio...

For those of you planning to attend the upcoming ABA National Conference on Professional Responsibility in San Antonio, I would like to let you know of two activities organized by the Professional Responsibility section of the Association of American Law Schools.

First on May 30th at 12:05, the section will host a lunch for the law professors attending the conference at Michelinos. If you would like to attend PLEASE contact me at before May 21st. We need an accurate count to make the reservation. 

Second, on June 1st at noon, Carol Needham will be moderating our annual Scholarship Roundtable. This will be an opportunity  to get together to discuss works in progress or recent articles. For information please send a message to Carol at with "Roundtable Speaking Slot" in the subject line.

I am looking forward to seeing you in San Antonio!

Sunday, May 12, 2013

New York D.A. to Review 50 Murder Cases for Possible Wrongful Convictions

A NY Times Sunday front page article reports: The Brooklyn district attorney’s office has ordered a review of some 50 murder cases assigned to an acclaimed homicide detective, an acknowledgment of mounting questions about the officer’s tactics and the legitimacy of the convictions.  Seeking Justice has more on the story here.

Friday, May 10, 2013

Witness preparation and the uncontrollable witness

Prosectuor's Discretion has published a short comment by a prosecutor with some good advice on how to prepare a witness and the concerns over what he calls "uncontrollable witnesses."  The most interesting part of the comment relates to the concern over witnesses giving media interviews, which states, in part, "[i]t is never a good idea for a witness to give media interviews. The interviews are taped and are now prior statements where even the slightest misstatement may come back to haunt them at trial. The more interviews, the more possible inconsistencies. Plus, a person's hidden past might emerge once the media begins digging."  Go here to read the full comment.

The one thing I would add to the advice is to remind client's and witnesses about the risks of using social media.  It is surprising how many people post things on Facebook and other sites not realizing it how easily their comments can be read by others!

Tuesday, May 7, 2013

Prosecutorial misconduct

I have often commented on how it is important for courts to take prosecutorial misconduct seriously.  What incentive is there to stop acting improperly, if courts give the conduct a pass?

Seeking Justice, a blog I discovered recently on prosecutorial misconduct, agrees with me.  Commenting on the case in Texas where the former prosecutor is facing charges for not having disclosed exculpatory evidence, Seeking Justice states that prosecution of prosecutors is a rarity, but it has to be done.  It concludes that "we urge all attorneys who seek justice to demand that prosecutors be held to the highest standards and abide by the laws they swear to uphold.  Anything less renders any notion of  Justice a farce."

I couldn't agree more.  See the full story here.

New Arizona opinion on Groupon for lawyers

Long time readers of this blog will remember previous posts on whether it is permissible for lawyers to use pre-paid discount services like Groupon to advertise and finance their legal services.  There are a number of state opinions out there now but there does not seem to be a general consensus on the matter.  The NY Bar Association has approved participating in Groupon (see here), as have North Carolina, South Carolina and Maryland (see here).  On the other hand, the Alabama State Disciplinary Commission has ruled attorneys can't use Groupon (see here).

And now, the State Bar of Arizona has issued the most recent opinion on the subject.  It found that although perhaps not impossible, it would be very difficult for an attorney to justify participating in Groupon given all the rules that would be implicated.  For a discussion of, and a link to, this new opinion you can check out the discussion over at the Legal Ethics Forum. You can access the opinion here.

Advice from a public defender: what to say when the DA insists you agree to the amount of bail the DA wants

Go here for the answer.